HALL v. WYNDER Doc.

2
Case 2:07-cv-02673-HB Document 2 Filed 07/13/2007 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ERIK HALL : CIVIL ACTION

:
v. :
:
JAMES T. WYDNER, et al. : NO. 07-2673

MEMORANDUM

Bartle, C.J. July 13, 2007

Before the court is the pro se motion of Erik Hall

("Hall") seeking relief from judgment pursuant to an unspecified

subsection of Rule 60(b) of the Federal Rules of Civil Procedure.

I.

On March 4, 1998, in the Court of Common Pleas of

Montgomery County, Hall pled guilty to two (2) counts of

attempted murder and robbery, and one (1) count each of robbery

of a motor vehicle, indecent deviate sexual intercourse, rape,

kidnaping and aggravated sexual assault and was sentenced to

twenty-five to fifty years of imprisonment. He then appealed to

the Pennsylvania Superior Court, arguing that the trial court

erred in granting the Commonwealth's petition to consolidate

charges entered in Philadelphia County with charges in Montgomery

County. The Superior Court dismissed the appeal for failure to

file a brief and the Supreme Court denied allowance of appeal on

April 6, 1999. See Commonwealth v. Hall, 737 A.2d 1223 (Pa.

1999) (table).

Dockets.Justia.com
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On June 13, 2005, nearly six years later, Hall filed a

petition for relief under Pennsylvania's Post Conviction Relief

Act ("PCRA"), 42 Pa. Cons. Stat. § 9541, et seq., raising four

claims of ineffective assistance of trial counsel, and one claim

that the trial court imposed an excessive and disproportionate

sentence. That day, the PCRA court notified Hall of its intent

to dismiss the petition as untimely and that he had 20 days to

respond. The PCRA court dismissed the petition as untimely on

August 9, 2005. Hall did not appeal.

On November 6, 2006, Hall filed in this court a pro se

petition for writ of habeas corpus under 28 U.S.C. § 2254. See

Hall v. Wydner, Civ.A. No. 06-4913 (E.D. Pa). Admitting the

petition was untimely, Hall nevertheless argued that it was

subject to equitable tolling. In addition, he asserted that his

trial counsel was ineffective. On March 20, 2007, we adopted the

Report and Recommendation of the Honorable Peter B. Scuderi and

dismissed the petition. Even assuming equitable tolling is

available in the context of a habeas petition under § 2254, we

held that Hall's petition failed to satisfy his burden to

establish "(1) that he has been pursuing his rights diligently,

and (2) that some extraordinary circumstances stood in his way."

Pace v. DiGuglielmo, 544 U.S. 408, 418, and n.8 (2005). Hall did

not appeal.

On June 26, 2007, Hall filed this action. He seeks

relief under Rule 60(b) and our "inherent" Article III equitable

powers.

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II.

Congress has enacted a procedure a state petitioner

must follow before filing a second or successive motion

collaterally attacking his conviction and/or sentence. See 28

U.S.C. §§ 2244, 2254. A petitioner must obtain authorization

from the appropriate court of appeals to proceed with a second or

successive motion before a district court can entertain it.

Pridgen v. Shannon, 380 F.3d 721 (3d Cir. 2004); 28 U.S.C.

§ 2244(b)(3). The court of appeals may only grant authorization

under limited circumstances. Otherwise, a second or successive

motion must be dismissed. 28 U.S.C. §§ 2244(b)(1),(2). Unless

and until the court of appeals grants the petitioner permission,

the district court is without jurisdiction to decide the motion.

Because of the high hurdle imposed by Congress, some

defendants have attempted to escape this limitation by filing

under various other labels what is in reality a second or

successive motion under § 2254 challenging their confinement.

Both the Supreme Court and our Court of Appeals have held that

petitioners may not make such an end-run around the AEDPA.

Gonzales v. Crosby, 545 U.S. 524 (2005); Pridgen, 380 F.3d 721.

Our Court of Appeals has joined several others in finding that

the substance of a motion, regardless of its label, determines

how the courts must treat it, including whether or not the

limitations on second and successive habeas motions apply.

Pridgen, 380 F.3d at 727.

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The Supreme Court has explained that a Rule 60(b)

motion is not a second or successive § 2254 motion and therefore

not subject to the requirement that the defendant obtain prior

authorization from the court of appeals if it attacks the "manner

in which the earlier habeas judgment was procured and not the

underlying conviction." Gonzales, 545 U.S. at 532. In other

words, a proper Rule 60(b) motion does not challenge "the

substance of the federal court's [prior] resolution of a claim on

the merits, but [rather] some defect in the integrity of the

federal habeas proceedings." Id. To the extent a Rule 60(b)

motion seeks "a second chance to have the merits determined

favorably," however, it must be recharacterized as a motion under

§ 2255 and be authorized by a court of appeals before a district

court may entertain it. Id. at 532 n.5.

III.

We must first determine whether the motion before us is

substantively a second and successive motion under § 2254. See

Pridgen, 380 F.3d at 727. If we characterize the motion as such,

it is subject to the requirements pertaining to second or

successive motions under § 2254 and we lack jurisdiction to

decide it until Hall obtains the proper authorization from our

Court of Appeals. 28 U.S.C. § 2244.

Hall argues that the Report and Recommendation we

adopted dismissing his prior motion under § 2254 was a decision

that was "contrary to or involved an unreasonable application of

clearly established federal law." In addition, Hall raises a

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laundry list of constitutional errors he alleges were committed

during the underlying state proceedings both in the Court of

Common Pleas of Montgomery County and on appeal before the

Pennsylvania Superior Court. He nevertheless assures us that his

motion challenges the integrity of the prior habeas proceedings

and is therefore proper. In sum, Hall concludes that we erred in

failing to grant his prior motion under § 2254 and "should have

issued a writ of habeas corpus."

We interpret Hall's motion to argue that we erred in

adopting and approving the Report and Recommendation because,

according to Hall, its legal analysis and conclusion were wrong.

This is precisely the sort of claim properly raised in a motion

made to a district court under § 2254 or to a court of appeals

after denial of such a petition. It seeks "a second chance" to

have the merits of his constitutional claims "determined

favorably." Gonzales, 545 U.S. at 532; see also Pridgen, 380

F.3d at 727. Hall did not seek reconsideration of our March 20,

2007 decision nor did he seek appellate review of that decision.

The instant motion attempts the former. Hall should have raised

all of his arguments before or during trial, on direct appeal, in

a PCRA petition, and/or in a timely motion pursuant to § 2254.

He did not. He neither alleges nor is there any evidence that he

was somehow barred from doing so. We are therefore powerless to

consider the merits of these arguments unless and until Hall

obtains authorization from our Court of Appeals.

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In sum, Hall's motion is properly characterized as one

for relief under § 2254. As he has previously brought such a

motion that was dismissed as untimely by more than five years,

Hall must seek and obtain permission from our Court of Appeals to

file the instant motion. Accordingly, we will dismiss Hall's

present motion without prejudice to his right to seek

authorization from the United States Court of Appeals for the

Third Circuit to proceed in this court.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ERIK HALL : CIVIL ACTION

:
v. :
:
JAMES T. WYDNER, et al. : NO. 07-2673

ORDER

AND NOW, this 13th day of July, 2007, for the reasons

set forth in the accompanying Memorandum, it is hereby ORDERED

that the motion of Erik Hall pursuant to Rule 60(b) of the

Federal Rules of Civil Procedure is DISMISSED without prejudice

to his right to seek authorization from the United States Court

of Appeals for the Third Circuit to proceed in this court.

BY THE COURT:

/s/ Harvey Bartle III

C.J.